Linking under US copyright law: green light to its inclusion in the scope of public display right comes from New York

A day in the life of a Kat:
from Playboy bunny to ...
In late 2017 The IPKat reported that, after Europe, it appeared that the interplay between linking and copyright protection had re-surfaced also in the US [use of the term 're-surfaced' is justified in light of the fact that US courts have already had the chance to address these issues, eg in the well-known Perfect 10 case].

After a few months, earlier this week two decisions have been issued on this matter ... with two rather different outcomes.

Linking to unlicensed content Round #1: KO - Playboy v Boing Boing

First, on 14 February US District Judge Fernando Olguin (US District Court for the Central District of California) dismissed (but with leave to amend) Playboy's complaint against Boing Boing.

What is (was?) at stake here?

Basically Playboy [European readers will promptly recall that indeed the landmark decision of the Court of Justice of the European Union (CJEU) in GS Media - Katposts here - was prompted by a reference for a preliminary ruling made in litigation brought by the publisher of ... Playboy] sued the owner of website Boing Boing over linking in 2016 to "Every Playboy Playmate Centerfold Ever". 

While the Boing Boing page is still up, the content it links to and the YouTube video it embeds have been removed.

In its decision this week, Judge Olguin referred to the Tarantino v Gawker case, ie the litigation (which however never resulted in a decision) concerning the linking, by now-defunct Gawker, to the 146-page script for Tarantino's The Hateful Eight (which had the time had yet to be produced), to hold that liability for linking to unlicensed content "exists if the defendant engages in personal conduct that encourages or assists the infringement."

According to the judge, Playboy failed to demonstrate convincingly that Boing Boing has supported the infringement through inducement or material contribution. 

Now Playboy has time until 26 February to file a second amended complaint. [why not just bringing the litigation to Europe ... or New York (see below), wonders Merpel?]

... quarterback ...
Linking to unlicensed content Round #2: Victory - Goldman v Breitbart

The plaintiff in the second linking case has been luckier than Playboy (at least so far).

A photographer working with Getty Images, Justin Goldman, sued a number of publishers over the unauthorized embedding, by their relevant publications, of a tweet containing an unlicensed image of American football quarterback Tom Brady that he had taken.

According to the complaint filed with the US District Court for the Southern District of New York, tthe defendants - by embedding content hosted elsewhere (Twitter, although the photograph had been first uploaded onto Snapchat) - had infringed the plaintiff's public display right under §106(5) of the US Copyright Act. There was no evidence that the photo had been downloaded or stored anywhere though.

According to §106(5) of the US Act, the copyright owner has the right, "in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly". 

In a judgment issued yesterday, US District Judge Katherine B Forrest held that "when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result."

The judge noted how a review of the legislative history underlying adoption of the current Act reveals that its drafters intended copyright protection to broadly encompass new, and not yet understood, technologies. 

After referring the US Supreme Court in Aereo, whose language was found "instructive", the judge turned to the server test and its application in Perfect 10. She highlighted how Perfect 10 is not really part of an “unbroken line of authority” (as argued, instead, by the defendants). 

Rather, "the Server Test has not been widely adopted. Even a quick survey reveals that the case law in this area is somewhat scattered." In any case, according to the judge, the server test has not been adopted for the display right.

Also in Flava, the 7th Circuit did not touch upon the issue of direct liability. Nonetheless the lower court had opined that “[t]o the extent that Perfect 10 can be read to stand for the proposition that inline linking can never cause a display of images or videos that would give rise to a claim of direct copyright infringement, we respectfully disagree. In our view, a website’s servers need not actually store a copy of the work in order to ‘display’ it".

In sum, the Court sided with the plaintiff and held that "[t]he plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have “displayed” a work within the meaning of the Copyright Act."

... and a few moments' rest
Finally, the judge rejected the argument that a conclusion of this kind would have 'chilling effects'. The Court held that - among other things - even assuming that the public display right is engaged in acts of linking, US law still retains "a very serious and strong fair use defense, a defense under the Digital Millennium Copyright Act, and limitations on damages from innocent infringement." 


The decision in Goldman is very interesting and signals somewhat of an alignment between the understanding of the public display right under the US Copyright Act and the right of communication to the public under Article 3 of the InfoSoc Directive.

In addition, the decision seems to complement the conclusions of the US Copyright Office's Making Available Study. There the Office held that under existing (at that time) case law "it remains uncertain whether a court might deem certain forms of inline linking or framing distinguishable from the technology in Perfect 10 for purposes of the server test.  As will be discussed further below, application of the making available right to activities such as these raises complex issues that require consideration of a number of important factors.  While some of these issues have been addressed preliminarily, U.S. courts have not made definitive rulings as to how the server test might apply to activities potentially raising greater concerns for visual artists’ ability to exploit their works online than have been addressed so far."

Now, after this decision, some sort of response seems to have been provided. At least for now.

Linking under US copyright law: green light to its inclusion in the scope of public display right comes from New York Linking under US copyright law: green light to its inclusion in the scope of public display right comes from New York Reviewed by Eleonora Rosati on Friday, February 16, 2018 Rating: 5

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